In May 2005, the Hawaii State Legislature passed, and on July 6th the
Governor signed into law, a bill requiring that any machine used for
casting votes in elections in Hawaii produce a VVPAT.

For the final text of the bill (HB1740, SD2), go here:
To view the legislative history, go here:

The heart of the bill is in this section:

"No electronic voting system shall be used in any election unless it
generates a paper ballot that may be inspected and corrected by the
voter before the vote is cast, and unless every paper ballot is
retained as the definitive record of the vote cast.

(b) The chief election officer may rely on electronic tallies created
directly by electronic voting systems, in lieu of counting the paper
ballots by hand or with a mechanical tabulation system if:

(1) The electronic voting system is subject to inspection, audit, and
experimental testing, by qualified observers, before and after the
election, pursuant to administrative rules adopted by the chief
election officer under chapter 91;

(2) No upgrades, patches, fixes, or alterations shall be applied to the system through thirty days after the election;

(3) The chief election officer conducts a post-election,
pre-certification audit of a random sample of not less than ten per
cent of the precincts employing the electronic voting system, to verify
that the electronic tallies generated by the system in those precincts
equal hand tallies of the paper ballots generated by the system in
those precincts; and

(4) If discrepancies appear in the pre-certification audits in
paragraph (3), the chief election officer, pursuant to administrative
rules, shall immediately conduct an expanded audit to determine the
extent of misreporting in the system."

There are some unresolved ambiguities and unresolved potential problems
with the bill as passed. We had to make a number of tactical decisions
in the course of drafting the bill, negotiating with the legislators,
and remaining aware of the current state of voting technology available
on the market today.

The first choice we made in drafting the legislation was in deciding to
forgo a requirement for "open source" software, though several of our
core people are highly competent IT professionals (as well as "geeks" )
and this was understandably painful for them. In our judgment, trying
to win busy legislators over to "open source" would have required much
more time (and perhaps intellectual firepower) than most of them would
have available during the pressure of the session. Nothing in the bill
precludes the use of an open source solution should a working version
become available.

Let me comment on the specific language of the bill:

The "paper ballot is retained as the definitive record of the vote cast"

This is stronger language than is contained in bills in many other
states and proposed Federal bills. Taken by itself, the word
"definitive" may be a bit too strong. In our concerns about potential
evote fraud, we have to be careful not to privilege the paper ballot
TOO much and overlook the possibility of old-fashioned PAPER ballotbox
stuffing. In a conflict between the paper results and electronic
results, an investigation should be launched to determine which results
are more credible and not just assume that the paper results should be
definitive. So I have some problems with that word being used, though I
think that the other provisions on the audit make clear the intent of
the law.

Subsection 1):

The "electronic voting system is subject to inspection ...by qualified
observers, before and after the election, pursuant to administrative
rules"

The role of "official election observers" under Hawaii law, turned out
to be less clearly defined than we might have hoped. That is an area of
law that can use some clarification in a future session. This section
takes the existing role of "official observers" and allows them to "go
inside the machines" in order to serve their function as guarantors of
the election process's legitimacy. Previously, voting machine vendors
have refused "entry," and as the voting process has increasingly gone
"inside" the machines, the principle of transparency has been severely
undermined. And observers have been required to trust the "expertise"
and "integrity" of the vendors.

The intent of this section is to pierce the "proprietary intellectual
property" defense of the vendor. As a practical matter, any vendor
selling electronic voting machines to the Hawaii Office of Elections
will have to recognize this provision. And, the Office of Elections can
no longer say to observers that "it is up to the vendor" to decide
whether to allow inspection.

The criteria for "qualified observers" have not been spelled out and
this is a major weakness in the bill. It was the desire of the lead
House legislator to tighten up this language in statute before passing
the bill, but we were unable to come up with good language in time, so
the responsibility was laid to the Office of Elections to come up with
administrative rules. For a number of reasons, THIS IS NOT IDEAL and we
will have to work with key legislators to draft new language prior to
the next session.

Subsection 2):

"No upgrades, patches, fixes, or alterations shall be applied to the system through thirty days after the election;"

This freezes the software and hardware for thirty days after an
election, which is the time period under current Hawaii law during
which challenges to election results must be filed. If something is
suspicious about some results, "qualified observers" or candidates with
a court order (if necessary) will have access to the undisturbed
evidence.

Thirty days might strike some as too short of a time period, but
Hawaii's general election is held only six weeks after the primaries
and this freeze will place a burden on the Office of Elections.

Originally, we had also called for a freeze to go into effect after any
PRE-election inspection under subsection 1, which is a very valid
concept, but we were unable to come up with workable language and
therefore, limited the language to the post-election period. As a
practical matter, the requirement that the hardware and software must
be federally certified provides some protection against unauthorized
last minute "patches", "hacks" or other alterations. But we would like
to have an explicit restriction in state law.

Subsection 3 and 4:

"(3) The chief election officer conducts a post-election,
pre-certification audit of a random sample of not less than ten per
cent of the precincts employing the electronic voting system, to verify
that the electronic tallies generated by the system in those precincts
equal hand tallies of the paper ballots generated by the system in
those precincts; and

(4) If discrepancies appear in the pre-certification audits in
paragraph (3), the chief election officer, pursuant to administrative
rules, shall immediately conduct an expanded audit to determine the
extent of misreporting in the system."

Audit of NOT LESS THAN 10%!

I have seen places where verified voting advocates have been fighting
for an audit of 2%. In Hawaii, the current practice of the Office of
Elections has been to conduct a manual recount of not less than 10% of
the paper optical scan ballots. The Chief Elections Officer has said
that in practice, they manually recount about 20% of the paper ballots.
So we just applied the same standard to the electronic ballots and did
not encounter any special resistance to this provision.

It is important to stress that this bill does not require a shift to
electronic voting machines. If the State were to stay with the current
optical scan system as the major voting system, that would not conflict
with this law. This law says IF electronic voting machines are used
they must provide a VVPAT and be subject to these inspection and audit
requirements.

The BEST solution for cost effective and secure voting MAY be to use a
paper-based system (like optical scan) as the primary system, with
VVPAT capable electronic voting machines as an "adjunct" system to
satisfy the HAVA requirements for accessibility to disabled voters.

Each state is unique and some things may be legislatively possible in
some places and more difficult in others. As I've said, we need to
follow up to improve the recently passed law and I would welcome any
suggestions for the problem areas I have mentioned (or others that you
might discern).